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The Pennsylvania Superior Court has ordered a new trial in a Philadelphia medical malpractice case because defense attorneys went too far in questioning a plaintiff’s expert physician about disciplinary proceedings he faced in his home state. In a non-precedential decision captioned Smith v. Meller, the appellate panel — Judge Kate Ford Elliott and Senior Judges Frank J. Montemuro Jr. and Justin M. Johnson — concluded that while it was appropriate for the trial judge to allow the defense to impeach the expert physician by conducting cross examination about the professional discipline action, it was wrong to attempt to establish a link between a recent name change by the expert and his alleged disciplinary woes. After a four-day trial in June 2003 before Philadelphia Common Pleas Judge Patricia A. McInerney, the jury returned a verdict in favor of Menachem Meller, the orthopedic surgeon who had performed shoulder surgery on plaintiff Betty Smith in 1999, according to the panel’s opinion. Smith, who was 70 years old when she injured her shoulder in 1999, alleged that Meller’s use of improper surgical techniques had caused her debilitating pain and loss of use of her right arm following surgery, according to the opinion. In preparation for trial, Smith retained as her orthopedic surgery expert Rafael Lopez-Steuart, a physician from Maryland. The Maryland doctor testified at trial for Smith. When defense lawyers cross-examined Lopez-Steuart, Superior Court said, they devoted half of their questions to a license suspension proceeding against the doctor in his home state. The portion of Lopez-Steuart’s cross-examination focused on disciplinary issues led to the new trial motion. The appellate panel concluded that details of Lopez-Steuart’s past disciplinary proceedings and possible connection to his name change were issues that were collateral to the medical malpractice allegations raised by the plaintiff and had the potential to mislead the jury. “To highlight the extent of the prejudice involved, we note that the cross-examination of the expert witness consumed 34 pages of trial testimony; half of the pages reflect routine cross-examination on the merits of the case while the other half are devoted to these collateral issues,” states the opinion, which is dated Feb. 9. “Thus, we find that the trial court abused its discretion in permitting Dr. Meller to impeach [Smith's] expert witness with collateral and prejudicial matters.” During cross-examination of Lopez-Steuart at trial, according to the opinion, the expert testified that he was licensed in Washington, D.C., and Maryland. Lopez-Steuart told the court that Maryland authorities had placed him on probation for two years. According to public documents maintained by the New York State Department of Health, which has also authorized Lopez-Steuart to practice medicine, Maryland public health officials had placed him on two years’ probation in April 2003 after finding that he had committed unprofessional conduct when he threw a “temper tantrum” in an operating room, screaming obscenities at an X-ray technician and throwing a surgical device at an instrument stand. Lopez-Steuart did not immediately return a call seeking comment. According to the Superior Court opinion, Meller’s attorneys also questioned Lopez-Steuart about the fact that he had subsequently changed his surname from “Lopez” to “Lopez-Steuart” without reporting the change to Maryland licensing officials. Lopez-Steuart testified that he had added his wife’s family name to his own after their first child was born. The panel said that parties are permitted to explore issues potentially related to credibility when cross-examining an opposing party’s expert witness, but only within certain limits. The appeals court said that, for instance, it would not countenance questioning about a bad act that has not resulted in a conviction and is unrelated to the case before the court. “Pennsylvania courts have held that the nexus between a medical censure and the veracity of a doctor testifying on the witness stand in a totally unrelated matter is questionable at best,” states the opinion, citing a 1973 state Supreme Court decision, Downey v. Weston. At trial, plaintiffs attorneys objected when the defense began to question Lopez-Steuart about the details of his hearing in front of Maryland’s board, according to the opinion. McInerney concluded that beyond having basic testimony on the record concerning the disciplinary proceedings and the name change itself, the defense could go no further on those lines of questioning. “The defense, however, continued to question Dr. Lopez-Steuart on precisely the matters the trial court ruled were not admissible; the defense questioned the doctor about the specific details of the incident and the board’s findings,” the opinion states, adding later, “The defense illustrated the doctor’s failure to state that he was on probation by its first question; further elaboration on this collateral matter was merely a tactic designed to impugn the doctor’s character.” The panel also agreed with Smith that Meller’s attorneys should not have been allowed to try to link the name change to the disciplinary proceedings. “Nothing about the legal change of the doctor’s surname relates to his veracity, competency or credibility,” the opinion states. Smith’s attorney, J. Craig Currie of Currie & McLafferty, said the parties will again go before McInerney for the new trial in Smith. Currie said he did not learn of the disciplinary proceedings in Maryland against Lopez-Steuart until the trial began and even then was not fully aware of all the details surrounding the doctor’s reprimand. Attorneys who do not thoroughly investigate expert witnesses, Currie noted, can find themselves faced with the dilemma of either filing a motion in limine to preclude questioning about the expert’s unrelated past problems, thereby educating the other side as to facts about which they might not have been previously aware; or hoping the opposing counsel will not find out about the expert’s history, a strategy that could backfire. Defense attorneys Kimberly Boyer and Paul Bechtel Jr. of Marshall Dennehey Warner Coleman & Goggin did not immediately respond to calls seeking comment.

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